Senate Republicans are learning to rue the day Congress gave presidents extensive authority in the International Emergency Economic Powers Act. The latest nail in the coffin of legislative influence is President Donald Trump’s invocation of his emergency powers to impose a tariff on Mexican products to force the country to crackdown on Central American asylum-seekers trying to reach the U.S.
No Senate Republican has come out in support of Trump’s action, and many are vocally opposed. Yet despite the certainty of legal challenges if the tariff goes into effect as planned Monday, odds are reasonably high that Trump can get away with it.
This state of play is deeply troubling from a constitutional perspective. It’s also Congress’ fault.
The Constitution is supposed to limit the president to acting as the executive of the political will expressed by the people’s representatives in Congress. But the IEEPA, like other emergency power provisions created by Congress in the past, is being used by Trump to reverse the constitutional order designed by the framers.
In the long run, the only way to fix this problem is for Congress to roll back the emergency authorities it has granted the executive — powers that are inherently liable to presidential manipulation and overreach. The courts can’t be relied on to do the job on Congress’ behalf.
The president’s extreme latitude under emergency powers provisions became visible in February, when Trump declared a state of emergency at the U.S.-Mexico border and invoked a number of statutory provisions (not the IEEPA) to justify spending money on a border wall that Congress had not appropriated.
After Trump’s border wall overreach, 12 Senate Republicans voted against his use of emergency powers. That was an important moment in which those senators were noticing that a core congressional power, the power of the purse, was being undermined by the president’s unilateral action.
But Trump’s efforts survived, because opponents fell short of the votes necessary for vetoing presidential emergency action. Opponents needed two-thirds majorities in both the Senate and the House.
The same vote would be necessary for Congress to roll back Trump’s invocation of the IEEPA to impose the tariff at the Mexican border. It’s now conceivable that the Senate could reach the two-thirds threshold. The House is another matter.
What’s important, though, isn’t the head counting. It’s that it’s exactly backward for Congress to need two-thirds majorities in both houses to block presidential action. The veto override provision of the Constitution isn’t designed to block the president from taking action. It’s designed to force a bill into law even when the president vetoes it.
In other words, the basic structure of the Constitution is supposed to make Congress the legal policy-maker. The president is called the “executive” because he is charged with executing the laws passed by Congress.
The nature of emergency provisions caused this reversal. As written, the provisions give the president wide latitude to declare an emergency and to take a range of actions in response. The effect of the law is to allow the president to act freely unless Congress can veto his actions.
Read very minutely, the IEEPA might not actually authorize the tariff. But it’s a very close call, and what little precedent there is arguably supports Trump’s use of the emergency powers to authorize the tariff.
In the past, presidents deployed emergency powers a bit more sparingly, probably because they thought they had to work with Congress.
Trump does things differently. Now that this president has learned to use emergency powers to get around Congress’ will, he can be expected to keep trying to do it again and again.
Future presidents are likely to take note. Historically, executive power has been extended by presidents of both parties — and it has rarely been contracted in substantial ways.
It’s up to Congress to try to reverse this particularly dangerous presidential expansion. Maybe the Mexico tariff will function as the pivot point and give Congress the will to reinstate some of the power that the Constitution gives it — and that the legislature unwisely ceded to the president.
Noah Feldman is a columnist with Bloomberg Opinion.